anwar bin mohd apandi - universiti teknologi...
TRANSCRIPT
ARCHITECT LIABILITY DURING INSPECTION OF WORK
ANWAR BIN MOHD APANDI
UNIVERSITI TEKNOLOGI MALAYSIA
ARCHITECT LIABILITY DURING INSPECTION OF WORK
ANWAR BIN MOHD APANDI
A project report submitted in partial fulfillment of the
requirements for the award of the degree of
Master of Science in Construction Contract Management
Faculty of Built Environment
Universiti Teknologi Malaysia
JUNE 2010
iii
To My Father and Mother
Thank you for your support, love and encouragement.
iv
ACKNOWLEDGEMENT
This project report was completed with the contribution of many people whom I
would like to express my sincere gratitude. They have contributed towards my
understanding and thought.
Firstly, I would like to convey my sincere thanks and gratitude to my supervisor,
Associate Professor Dr Rosli bin Abdul Rashid for his patience, time, guidance,
comments and friendship throughout the entire research.
I am also indebted to other lecturers (Master of Science in Construction Contract
Management), give a comment and opinion and for their kind advice during the process
of completing this master project.
My fellow postgraduate students should also be recognized for their support. My
sincere appreciation also extends to all my colleagues and others who have provided
assistance at various occasions. Their views and tips are useful indeed.
Finally, I am deeply grateful to my family for their unconditional love, continuous
support, encouragement and care throughout my studies.
v
ABSTRACT
Architect is one of the professionals that involved in all the stages in the
construction development. The duties of architect in the construction stage such as
inspection for make sure all the works are follow on specifications and plan and advise a
client for works on credible contractor to carry the construction project. The architect will
require delivering his duties with reasonable skill and care. In a case law, they are many
problems related with inspection of work by architect towards a client. The breach to a
client under on reasonable skill and care is a failure and negligence inspection. But, in
other cases they not become breach and negligence duty to inspect a work if architect can
proof. This research seeks to determine liability of The Architect associate inspection
during construction stage. The scope is liability to a client and under traditional
procurement. The analysis was carried out by referring to relevant law cases. This study
found that generally, the architect owe a duty of care to perform his duty with diligent
and with reasonable skill in accordance to the standard of duties stated to a client. If he
fails to make inspection he is liable for resulting damages to his client. The architect
cannot be claim by a client if he inspect a work with certain degree.
vi
ABSTRAK
Arkitek adalah kumpulan professional yang terlibat di dalam semua peringkat
pembangunan pembinaan. Dalam peringkat pembinaan, antara tugas arkitek adalah
memeriksa bangunan untuk memastikan semua kerja di dalam pembinaan mengikuti
spesifikasi dan pelan. Ia juga bertanggungjawab dalam menasihati klien untuk
memastikan kredibiliti kontraktor untuk menjalankan kerja tersebut. Arkitek hendaklah
menjalankan tugas dengan penuh perhatian dan tanggungjawab. Di dalam kes mahkamah,
banyak masalah yang melibatkan arkitek dengan klien. Pelanggaran kontrak dibawah
arkitek adalah kegagalan untuk memeriksa bangunan dengan penjagaan dan
tanggungjawab. Tetapi, dalam kes lain pelanggaran kontrak tidak terjadi jika hanya
kesilapan di dalam memeriksa bangunan yang dapat dibuktikan oleh arkitek bahawa dia
telah menjalankan tugas sewajarnya. Kajian ini untuk mengenalpasti liabiliti arkitek
termasuk dalam memeriksa bangunan di dalam peringkat pembinaan. Skop kajian ini
adalah terhadap klien dan dibawah dokumentasi secara traditional. Analisis dibuat
dengan merujuk kepada undang-undang kes yang berkaitan. Kajian ini telah menjumpai
arkitek mempunyai tanggungjawab untuk menjalankan tugas kepada klien. Jika ia gagal
dalam membuat pemeriksaan terhadap bangunan, ia boleh dikenakan gantirugi kepada
klien. Arkitek tidak perlu membayar ganti rugi dan tidak termasuk dalam pelanggaran
kontrak jika kerja yang dibuat adalah disebabkan kecacatan dengan beberapa sebab dan
membuktikan tiada kesilapan.
vii
TABLE OF CONTENT
CHAPTER TITLE PAGE
DECLARATION ii
DEDICATION iii
ACKNOWLEDGMENTS iv
ABSTRACT v
ABSTRAK vi
TABLE OF CONTENT vii
LIST OF CASES xii
LIST OF FIGURE xvi
LIST OF ABBREVIATION xvii
1 INTRODUCTION 1
1.1 Background of the study 1
1.2 Statement of issues 3 1.3 Objective of study 5
viii
1.4 Limitation of Study 5
1.5 The significant of research 6
1.6 Research Methodology 6
2 ARCHITECT AND LIABILITY 9
2.1 Introduction 9
2.2 Definition of Architect 11
2.3 Roles of Architect 12
2.4 Selection of Architect 14
2.5 Appointment of Architect 15 2.5.1 Form of Appointment
2.6 Conditions of Engagement 16
2.7 Duties of Architect 17
2.7.1 Duties under Standard Form of Contract 18 2.7.2 Duties during Construction Stages 19 2.7.2.1 Supervision and Inspection of Works 20 2.8 Professional Relationship 21 2.8.1 Architect and Owner/Clients 21 2.8.1.1 Liability Architect as an Agent 23 2.8.1.2 Voluntary Agreements with Owners 23 2.8.1.3 Termination of Contract between 24 Owner and Architect 2.8.1.4 Architect and Client Relation during 25 Inspection
ix
2.8.2 Architect and contractor 26 2.8.2.1 Architect And Contractor Relation 28 During Inspection 2.9 Architect cannot delegate a work 31 2.10 Architect decision is final 32 2.11 Architect decision is not final 34 2.12 Professional liability 34 2.13 Professional liability in contract 37 2.14 The Architect Liability 38 2.14.1 Breach of contract 41 2.14.2 Negligence 42 2.14.2.1 Strict Liability 44 2.14.2.2 Vicarious Liability 45 2.15 Tort Liability 45 2.16 Standard of Care 48 2.17 Conclusion 50
3 INSPECTION OF WORK 51
3.1 Introduction 51 3.2 Definition of Inspection 52 3.3 Inspection of Contract Form 53 3.3.1 PAM Form 2006 53
x
3.3.2 P.W.D. Form 203 55 3.4 Inspectors 56 3.4.1 Inspection by the Design Professional or 55 Architect 3.4.2 Inspection by the Contractor 57 3.5 Scope if Inspection 59 3.6 Factors on Site Visit 60 3.7 Rules and Proceeding on a Site 61 3.8 Difference Supervision and Inspection 62 3.8.1 Difference Monitoring and Inspection 64 3.9 Inspection during Practical Completion 65 3.10 Site Preparation for Inspection 66 3.11 Site Information for Inspection 69 3.11.1 Snagging 71 3.11.2 Inspection Data Must Be Recorded 70 3.11.3 Conformance of Plan and Specifications 73 3.12 Visual Inspection 74 3.13 Inspection by Other Parties 75 3.14 Conclusion 76
4 CASE ANALYSIS: LIABILITY ARCHITECT IN 78 CONNECTION WITH INSPECTION
4.1 Introduction 78
4.2 Architect Negligence and Failure to Inspection 79
xi
4.2.1 Brown & Another v. Scott & Another 80
4.2.2 Dr Abdul Hamid Abdul Rashid & Anor v 81 Jurusan Malaysia Consultants (Sued As A Firm) & Ors 4.2.3 Chuang Uming (Pte) Ltd v Setron Ltd and another Appeal 82 4.2.4 Lim Teck Kong v Dr Abdul Hamid Abdul Rashid & Anor 83 4.2.5 McGlinn v Waltham Contractors Ltd and others (No 3) 84 4.3 Architect Not Liable On Negligence And Failure To Inspection 85 4.3.1 Sim & Associates v Tan Alfred 85 4.3.2 Tesco Stores Ltd v The Norman Hitchcox 86 Partnership Ltd and others 4.3.3 Consarc Design Ltd v. Hutch Investments Ltd 87 4.3.4 PB Malaysia Sdn Bhd v Samudra (M) Sdn Bhd 88 4.4 Conclusion Liability of Architect 89
4.5 Degree of Inspection 90 4.5.1 Inspection Depend On Size of Projects 90 4.5.2 Reasonable Work On Inspection 92 4.5.3 Inspection Depend On Contractor Expertise 93 4.5.4 Inspection On Related Event 94 4.5.5 Inspection Depend On Nature Of The Works 95 4.5.6 Architect Must Inspect All The Works 97 4.6 Conclusion on Degree of Inspection 98 4.7 Conclusion 99
xii
5 CONCLUSION AND RECOMMENDATION 100
5.1 Introduction 100
5.2 Research Finding 100
5.3 Study Constraint 101 5.4 Suggestion for future study 101
5.5 Conclusion 102
REFERENCES 106
xiii
LIST OF CASES
CASES PAGE
Acrecrest Ltd. V W. S. Hattrell & Partners and Another [1983] Qb 260
Anns v. Merton London Borough Council[1978] A.C. 728
Bolam v. Friern Hospital Management Committee [1957] 1 WLR 583
Blair And Patterson Ltd v. McDermott [2006] ABC.L.R. 05/01,
Brown & Another v. Scott & Another
Chuang Uming (Pte) Ltd V Setron Ltd And Another
Appeal[2000]1SLR166
Clay v. A.J. Crump & Sons Ltd[I964] 1 QB 533
Clayton v. Woodman & Son (Builders) Ltd. [1962] 2 Q.B. 533.
Consarc Design Ltd. v Hutch Investments Ltd (2002) 84 Con LR 36
Croudace Ltd v London Borough of Lambeth (1986) 6 Con LR 70
39,54, 74, 75,
79
42,49
37
106
63. 79,80,96
31, 82, 91,95
70,74
34
87,94
23
xiv
Davie v. New Merton Board Mills Ltd. [1959] A.C. 604
Department of National heritage v. Steensen Varming Mulcahy
and others [1998] 60 ConLR 33
Donoghue v Stevenson [I9321 A.C. 562
Dr Abdul Hamid Abdul Rashid & Anor V Jurusan Malaysia
Consultants & Ors [1997] 3 MLJ 546
East Ham Corp v Bernard Sunley & Sons Ltd[1966] AC 406
Jameson v Simon[1899] 1 F (Ct of Sess) 1211
Kennedy v Gerard Hamill [2005] NIQB 23.
Kensington, Chelsea & Westminster Area Health Authority v.
Wettern Composites (1984) 1 CON LR 114
Lim Teck Kong v Dr Abdul Hamid Abdul Rashid & Anor[2006] 3 MLJ
213
McGlinn v Waltham Contractors Ltd and others (No 3) [2007] EWHC
149 (TCC)
McLoughlin v. O'Brian[1982] 2 W.L.R. 982
PB Malaysia Sdn Bhd v Samudra (M) Sdn Bhd
Pembenaan Leow Tuck Chui & Sons Sdn Bhd V Dr Leela's Medical
Centre Sdn Bhd[1995] 2 MLJ 57
31
20,61
48
81,92
69,106
85,105
75
32
83
4, 33,63, 72,
78, 85,93,98
49
88,92
30,83,100
xv
R v. Architects Registration Tribunal, ex p. Jaggar [1945] 2 All E.R.
131
RSP Architects Planners & Engineers v Ocean Front Pte Ltd[1996] 1
SLR 113
Rylands v. Fletcher [1868] LR 3HL 330
Scrivener & Anor v Pask (1866) LR 1 CP 715.
Sim & Associates (Sued As A Firm) V Tan Alfred[1994] 3 SLR 169
Steven Phoa Cheng Loon & Ors v Highland Properties Sdn Bhd & Ors
[2000] 4 MLJ 200
Sutcliffe v Chippendale & Edmonson (1971) 18 BLR 149
Sutcliffe v. Thackrah & Ors. [1974] AC 727
Tesco Stores Ltd v The Norman Hitchcox Partnership Ltd and others
Teh Khem On & Anor V Yeoh & Wu Development Sdn Bhd &
Ors[1995] 2MLJ663
Victoria University of Manchester V. Hugh Wilson and Lewis
Momersley [1984] 1 Const LJ 162
Voli v Inglewood Shire Council & Anor(1963) 110 CLR 74
White & Anor v Jones & Ors[1995] 1 All ER 691.
1, 11
50
43
23, 69
17, 67, 85,97
17
93,100
17,102
86
84
29,82,83
30,40,47
80
xvi
LIST OF FIGURE
FIGURE NO TITLE PAGE
1.1 Research Process and Methodology 8
2.1 Relation with Owner – Contractor - Architect 27
2.2 Relation with Owner – Contractor – Architect with subcontractor 27
2.3 Types of liability 45
3.1 Process on inspection during practical completion 66
3.2 Flow site preparation for inspection 68
3.3 Important information for inspection 71
4.1 Difference Negligent To Inspection and Failure to Inspection 89
4.2 Conclusion Case Analysis 89
4.3 Conclusion on Degree of Inspection 98
xvii
4.4 Chronology of Liability Architect during Inspections of Work 99
LIST OF ABBRIEVATIONS
PAM - Pertubuhan Arkitek Malaysia
PWD - Public Works Department Malaysia
P.D - Project Director
S.O. - Superintending Officer
C.O.W - Clerk of Work
1
CHAPTER 1
INTRODUCTION
1.1 Background Of The Study
The architect is a important profession team in a construction project.
Architect is qualified to design and administer the erection of buildings, and
must possess both theoretical and practical knowledge.1 The Architects
(registration) Act 1931, as amended by the Architects Registration Act 1938,
made it illegal for any person to practice or carry on business under any name,
style or title containing the word “architect” unless he was a person registered
under Principal Act. The appeal tribunal defined “architect”2
An Architect is one who possesses, with due regard to aesthetic as well
as practical considerations, adequate skill and knowledge to enable him (sic) (i)
to originate, (ii) to design and plan, (iii) to arrange for and supervise the
erection of such building or other works calling for skill and design in planning
1 David Chappel & Andrew Willis (2006) The Architect in Practise : Blackwell at pg 7 2 R v. Architects Registration Tribunal, ex p. Jaggar [1945] 2 All E.R. 131
2
as he might, in the course of his business, reasonably be asked to carry out in or
in respect of which he offers his services as a specialist.
The Architect should have a good, practical knowledge of building and
allied trades and must have at least a working knowledge of the more
specialized aspects of building, such as mechanical and electrical engineering
services. Above all they must be creative and dedicated to solving the client’s
problems as expressed in the brief.3
According to Shrike4, the term professional refers to a person who is
skilled and specialized, holds some special qualifications derived from training
or experience and conforms to high standard of performance and work ethics.
This professional belongs to a regulatory body which prescribes common rules
of conduct and standard practice. This professional must perform his duty under
a standard of performance.
One of the duties of the architect during construction stage is to inspect
and supervise the work of the contractor. Inspection should have a definite
purpose. They should coincide with particular stages in the works. The architect
must prepared early and highlight the important matters before inspect.5
The duties of architect to a client in a construction stages such as he
must inspect and supervise a work by contractor. They can be determining the
architect is liable to a client or not in a level of inspection. They are two
situations in liability of inspection, whether is a poor or negligence by architect
3 David Chappel & Andrew Willis (2006) The Architect in Practise : Blackwell at pg 8 4 Shrike,S (2009) 2 MLJ cl xii 2 MLJA 162 : Professional Negligence in the Construction Industry,
MLJ Articles 5 David Chappel & Andrew Willis (2006) The Architect in Practise : Blackwell at pg 233
3
to inspect and failure by architect to do a duty for a client that become breach of
contract.
Therefore an architect may become liable in either contract for any
physical injury or economic loss which any person has suffered due to his
failure possess and to exercise reasonable skill and care in the performance of
his professional work. Failure to exercise in the normal skill and care which
circumstances demand is negligence.6
1.2 Statement Of Issues
The Architect is a person always open to any action because of failure
and negligence. He under their duty to make sure all work completed and
followed a specification in a contract. Many questions and issues have been
arising especially when a building collapse or construction fails. Consequences
of that the architect was after blamed for failure of inspect a works.
Many Architect claims that supervision and inspection are similar and
same responsible to a contractor. Inspection involves looking and noting,
possibly even carrying out tests. Supervision, however, not only covers
inspection but also the issuing of detailed directions regarding the execution of
the works. Supervision can only be carried out by someone with the requisite
authority to ensure that the work is carried out in a particular way. Inspection is
not something to be carried out lightly. Some architects simply wander onto the
6 Robert Beaton (1976) The Architect and The Law : RIA: page 2
4
site with no clear idea of what they expect to find or indeed what they should be
looking for.7
Several cases have pointed out where architect has not performed his
duty of inspection accordingly, it should still be remembered that the architect
has a duty under his conditions of engagement, to take due care in making
inspections and is still responsible to the client to exercise skill in observing any
departure from the contract documents that may be seen at the time of the
inspection.8
The architect can be sue by client in negligence or failure on
inspection, in a refer case of McGlinn v Waltham Contractors Ltd and others
(No 3)9
It can sometimes be the case that an employer with a claim for bad
workmanship against a contractor makes the same claim automatically
against the inspecting officer, on the assumption that, if there is a defect, then
the inspector must have been negligent or in breach of contract for missing the
defect during construction. That seems to me to be a misconceived approach.
The architect does not guarantee that his inspection will reveal or prevent all
defective work.
From the cases, they have been highlighted whether inspector must
have been negligent or in breach of contract when defects happen in
constructions. This is liability that been issue by many case whether architect
7 David Chappel & Andrew Willis (2006) The Architect in Practise : Blackwell at pg 233 8 Martyn D. Chapman & Robert G. Beaton (1980) The Architect and claims of Professional Negligence
: RIAI at pg 21 9 [2007] EWHC 149 (TCC)
5
is under negligence or failure to inspect. The judge also stated that architect
does not guarantee that his inspection will prevent all defective works. The
statement is conflict with a duties stated in a professional rules and
construction contract that an architect must perform a duties to client with a
skill and care as an agent to client.
Therefore the architect must be determining whether he is liable for
any loss, damage or injury which the employer suffers due to his negligence in
inspection. In a statement by Robert Beaton, architect is not liable merely
because his client suffers some loss or damage, but only if he himself has
committed some act or omission which, in the eyes of the law, constitutes
negligence.10 In other cases negligence cannot be claimed by a client because
of poor inspection by architect in a difference failure of duties.
1.3 Objective Of Study
The objective of this study is to determine liability of The Architect in
connection with inspection during construction stage.
1.4 Limitation Of Study
The scope of this study will be confined to the following areas:
10 Robert Beaton (1976) The Architect and The Law :RIA : page 19
6
• 20 years duration of cases fall under conventional system because this
method still is the common method used.
• This study will be limited to contractual liability between the client and the
Architect.
• Rules and regulations related with inspection of the site in Malaysia and
other countries.
1.5 The Significant Of Research
From the research finding, the future research on corrective measures
can be carried out later to overcome or decrease the number of actions towards
the professionals liability with the intention that the professionals are remain
trustable and reliable into an inspections of the site.
1.6 Research Methodology
Below are several approaches that will be taken to achieve the objectives.
Firstly, initial literature review was done in order to obtain the overview
of the concept of this topic. Discussions with supervisor, lecturers, as well as
course mates, were held so that more ideas and knowledge relating to the topic
could be collected. The issues and problem statement of this research will be
7
collected through books, journal, cases, articles and magazines. The objective of
this research will be formed after the issue and problems had been identified.
The next stage is the data collection stage. After the research issue and
objectives have been identified, various documentation and literature review
regarding to the research field will be collected to achieve the research
objectives.
Generally, primary data is collected from Malayan Law Journals and other
law journals via UTM library electronic database, namely Lexis-Nexis Legal
Database and other Legal Database. The secondary sources include books,
articles, seminar papers, newspaper as well as information from electronic
media database on the construction contract law. These sources are important to
complete the literature review chapter.
After the data collection stage, the author will analyse all the collected
cases, information, data, ideas, opinions and comments. This is started with the
case studies on the related legal court cases. The analysis will be conducted by
reviewing and clarifying all the facts and issues of the case.
The final stage of the research process mainly involved the writing up and
presenting the research findings. The author will review the whole process of
the research with the intention to identify whether the research objectives have
been achieved. Conclusion and recommendations will be made based on the
findings during the stage of analysis.
8
Initial Study
Approach 1: Literature review
• Books, journals, internet sources Approach 2: Discussion
• Discussion with friends and lecturers
Fix the research topic
Fix the research objective, scope and prepare the research outline
Data Collection
Data analysis & interpretation
Data arrangement
Writing
Checking
Identify type of data needed and data sources
Approach: Documentary Analysis
• Law Journals, e.g. Malayan Law Journal, Singapore law Report, Building Law Report, etc.
• Books • Other Journals
Data Recording
Diagram 1.1 Research Process and Methodology
107
REFERENCES
Architects Act 1967 (Act 117) (incorporating amendments up to April 2007)
issued by Board of Architects Malaysia
Architects Rules 1996 (incorporating amendments up to December 2005)
issued by Board of Architects Malaysia
Architects (Scale of Minimum Fees) Rules 1986 issued by Board of Architects
Malaysia.
Arnold Aiken Macfarlane (1954), Site supervision: a handbook for architects
and assistants
Arnold Aiken Macfarlane (1973), Architectural supervision on site, Applied
Science Publisher
Barros. A. A. J (1989) Professional Liability and Construction. England:
Chartered Institute Of Building Englemere, Kings Ride, Ascot, Berkshire SL5
8BJ
Bernard Tomson (1967), Architectural and engineering law, Reinhold Co.
Bob Greenstreet, Karen Greenstreet, Brian Schermer (2005), Law And Practice
For Architect: Architectural Press
108
Bruce M. Jervis, Paul Levin (1988) - construction law and practice, McGraw-
Hill Book Company
Contract Act 1950 (Act 136), Contracts (Amendment) Act 1976 (A 329) &
Government Contracts Act 1949 (Act 120) (As at 15th January 2007) by Legal
Research Board,International Law Book Services, 2007.
David Chappel & Andrew Willis (2006) the Architect in Practice: Blackwell
Publishing: Britain
Davies, C.M. (1989). Avoiding Claims: Practical Guide for the Construction
Industry. Great Britain: St. Edmundsbury Press Ltd.
E.J. Rimmer (1952), Rimmers Law Relating To The Architect: London Sweet
& Maxwell
Enden and Gill’s Building Contracts and Practise. Seventh Edition
Furst, S & Ramsey V. (2001) Keating on Building Contracts, 7th edn, Sweet &
Maxwell.
Grace Xavier (1998), Article: Dr Abdul Hamid Abdul Rashid & Anor V
Jurusan Malaysia Consultants (Sued As A Firm) & Ors [1997] 3 MLJ 546:
Breakthrough for Recovery in Pure Economic Loss?
Howard (2000), Professional Ethics and Rules of Conduct for the Royal
Institution of Chartered Surveyors (RICS), United Kingdom: College of Estate
Management
Inspection, http://www.businessdictionary.com/definition/inspection.html
109
Jay M. Bannister (1991), Building construction inspection: a guide for
architects, A Wiley-Interscience Publication
Jon Holyoak (1992), Negligence in building law: cases and commentary,
Wiley-Blackwell Publishing: Britain
John Chung (2004), Architect duties,
http://www.kcpartnership.com/resources/publication/Architects%20Duties.pdf
John M. Challis (1977), The architect and engineer and their professional
liabilities, RIAI Practise decision
John L. Powell. Professional Negligence the Changing Coastline of Liability at
http://www.4newsquare.com/Files/PDF/Article/JP%20article.doc
Martyn D. Chapman & Robert G. Beaton (1980) The Architect and claims of
Professional Negligence: (The Royal Australian Institute of Architects)
Mohan Pillay - Achitect and the Laws – Liability for Defects (Part2) -
http://www.lawgazette.com.sg/2000-11/Nov00-feature.htm
R.M Jackson and J.L Powell, Professional Negligence 5th Edition: London
Sweet & Maxwell Ltd.
R.I.B.A Conditions of arrangement (1962)
Patten B (2003) Professional Negligence in Construction Spon Press: London
Powell J.L & Jackson R.M (1987) Professional Negligence: Sweet & Maxwell:
London
110
Robert Beaton (1976) – The Architect and the Law. (The Royal Australian
Institute of Architects)
Ronald Green (2003), Architect’s Guide to Running a Job, Architectural Press
Shrike,S (2009) 2 MLJ cl xii 2 MLJA 162 : Professional Negligence in the
Construction Industry, MLJ Articles
Smith, Currie & Hancock (2009) - common sense construction law, John
Wiley & sons
The Housing Developers (Control and Licensing) Regulations 1989 by Legal
Research Board,International Law Book Services, 1989